The Omnibus Act – key changes in planning and environment

Last week, the COVID-19 Omnibus (Emergency Measures) Bill 2020 passed through Parliament and received Royal Assent on Friday 24 April 2020. It has now commenced as an Act and will be in place for six months. The Act contains some important measures touching on the role and responsibilities of a municipal council as both a planning and responsible Authority. The measures include:

• Planning and Environment Act 1987 (PE Act) – changes concerning public-facing planning processes affected by social distancing requirements and the closure of state and local government offices to the public. The key changes to the PE Act are:
  • Requirements to make documents available for inspection – existing requirements in the PE Act for planning documents to be physically available to view at state and local government offices can now be satisfied if the documents are made available for online inspection on council’s internet site. This will ease requirements for the need for physical inspection of:
    • planning scheme amendments and submissions
    • planning permit applications and objections.

This change comes with a further requirement and warning, being that councils must ensure that they do not disclose personal information about individuals (such as applicants for a planning permit or an amendment to a planning permit or individuals who make a submission or objection) without their consent. Note, however, that the publishing of addresses of the land that is the subject of an application or a planning scheme amendment is not restricted. Similarly under certain conditions, further information can be made available to individuals on request.

• Panel Hearings – the existing requirement under s 160 of the PE Act that Planning Panels Victoria must conduct its hearings ‘in public’ will be satisfied if the hearing is available to be viewed by ‘electronic means’, either while the hearing is being held or as soon as reasonably practicable afterwards. The planning and environment team at Maddocks has already had extensive experience in managing this process, as outlined below.
• Local Government Act 2020 (LG Act) – a complementary change has also been made to the LG Act, allowing councils to hold virtual meetings. This will enable councils to consider planning matters that cannot be delegated to officers, including the adoption of planning scheme amendments.
• Environment Protection Amendment Act 2018 (EPA Act) – Victoria’s new environment protection laws, which were intended to commence in July 2020, have been postponed until 1 July 2021. Links to read our previous updates on these reforms are at the end of this article. The State government has announced that the decision is part of its focus on delivering initiatives designed to ease the burden on business, industry and Victorians as they address the impacts of coronavirus.

Conducting electronic Panel Hearings – facilitating participation for all

Maddocks has recently facilitated multiple online Panel hearings for councils as the proponents to significant planning scheme amendments. In doing so, the team has coordinated:

• Skype invitations to all persons who wished to participate, containing a link to access the online hearing through Skype for Business, as well as a phone number and password for those phoning in.
• The development of guides containing IT tips and 'etiquette rules' to assist participants with managing the technology.
• Additional training and assistance to all persons who wished to participate in the hearing, including pre-hearing test runs of the technology with all participants to the hearing and additional one-on-one training with a Maddocks team member to help those unfamiliar with the process.

According to the directions of the relevant Panels, the hearings have been conducted as a combination of 'on the papers' and videoconferencing technology. In all those hearings, expert witnesses have given evidence and been cross examined by submitters and questioned by the Panel.

At any one time, the hearings have involved as many as 25 participants, including observers. Submitters without access to adequate internet were able to phone into the hearing via a direct teleconference facility which Maddocks merged with the Skype for Business video conference platform.

These unprecedented times, call for creative solutions and adaptation within the context of the legislation. Planning Panels Victoria is to be congratulated for pioneering the way to accommodate open panel hearings in the face of difficult circumstances where we are all unsure what the new normal will be perhaps for some time. Maddocks acting for the councils, has been pleased to be able to facilitate the 'online' panel hearing forum much like a council might normally make a venue available for the panel hearing.

If you have an upcoming Panel hearing scheduled, please let us know if we can assist you in facilitating a hearing using videoconferencing technology to ensure an open and public hearing is possible. In addition to Skype for Business, we are exploring a number of other secure videoconferencing platforms. For the time being, caution is being exercised in the use of Zoom given the concerns outlined in media and other IT channels.

Looking forward – what else needs to be considered?

The measures introduced by the Omnibus Act are undoubtedly critical in assisting planning processes to continue amidst this unprecedented time. The roles and responsibilities of planning and responsible authorities are, however, far reaching. There are many additional issues which we are currently working through with our local government clients to ensure that their essential functions and responsibilities can be met. This includes:

• VCAT funding – the implications of the State Government’s recent announcement on funding for VCAT, what this means for those cases put on hold and when matters will move forward.
• Section 173 agreements – the requirement for section 173 agreements to be executed as a deed, including the need for witnesses and the use of 'wet ink' rather than digital signatures continues to cause logistical complications for both landowners and council officers working remotely, especially where council offices are closed. Department of Environment, Land, Water and Planning has indicated that it is aware of the issue but the new legislation doesn’t address this issue.
• Notification of planning scheme amendments – the requirement for a planning authority to publish a notice of an amendment in a newspaper generally circulating in the area to which the amendment applies. With the temporary discontinuation of local Leader print publications, this has emerged as another issue which requires some consideration.

Maddocks has produced guides to a range of legal issues raised by COVID-19. You can access these guides here.